Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FIBER OPTIC USE AGREEMENT
BETWEEN
FIVECOM LLC
AND
NEW ENGLAND FIBER COMMUNICATIONS LLC
September 10, 1997
TABLE OF CONTENTS
Page
1. ARTICLE 1 - FIVECOM NETWORK AND NEW ENGLAND FIBER
FIBERS...................................................................................................4
2. ARTICLE II - SCHEDULE....................................................................................5
3. ARTICLE III - ACCEPTANCE.................................................................................5
4. ARTICLE IV - DELIVERABLES................................................................................7
5. ARTICLE V - TERM AND INDEFEASIBLE RIGHT OF USE...........................................................7
6. ARTICLE VI - TERMS OF PAYMENT............................................................................8
7. ARTICLE VII - MAINTENANCE AND REPAIR OF THE NEW
ENGLAND FIBER FIBERS.....................................................................................8
8. ARTICLE VIII - WARRANTIES...............................................................................10
9. ARTICLE IX - TAXES......................................................................................11
10. ARTICLE X - LIABILITY...................................................................................11
11. ARTICLE XI - FORCE MAJEURE..............................................................................12
12. ARTICLE XII - PERMITS AND REQUIRED RIGHTS-OF-WAY........................................................12
13. ARTICLE XIII - RELOCATION OF THE NEW ENGLAND FIBER FIBERS...............................................13
14. ARTICLE XIV - CONDEMNATION..............................................................................13
15. ARTICLE XV - USE OF THE NEW ENGLAND FIBER FIBERS........................................................14
16. ARTICLE XVI - OWNERSHIP OF THE NEW ENGLAND FIBER FIBERS.................................................14
17. ARTICLE XVII - DELIBERATELY OMITTED.....................................................................14
18. ARTICLE XVIII - DELIBERATELY OMITTED....................................................................14
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19. ARTICLE XIX - CONFIDENTIALITY...........................................................................14
20. ARTICLE XX - DEFAULT....................................................................................15
21. ARTICLE XXI - NOTICES...................................................................................15
22. ARTICLE XXII - ASSIGNMENT: SUCCESSION...................................................................16
23. ARTICLE XXIII - VENDORS.................................................................................17
24. ARTICLE XXIV - GOVERNING LAW............................................................................17
25. ARTICLE XXV - DISPUTE RESOLUTION........................................................................17
26. ARTICLE XXVI - LIENS....................................................................................18
27. ARTICLE XXVII - MISCELLANEOUS...........................................................................19
28. ARTICLE XXVIII - INSURANCE..............................................................................20
29. ARTICLE XXIX - ENTIRE AGREEMENT.........................................................................20
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1. ARTICLE 1 - FIVECOM NETWORK AND NEW ENGLAND FIBER FIBERS
PAGE MISSING
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
2. ARTICLE II - SCHEDULE
2.1. FiveCom shall use its best efforts to complete construction and
installation and have the New England Fiber Fibers ready for testing no later
than September 26, 1997.
2.2. In the event the New England Fiber Fibers are not made available
for New England Fiber testing by September 26, 1997 then, New England Fiber, in
its sole discretion, may deduct the sum of [**] from the payment described in
Article VI for each day beyond September 12, 1997, that the New England Fiber
Fibers are not ready for testing. This deduction will be taken as a credit on
the front end of the contract. In the event the New England Fiber Fibers are not
made available for testing by October 12, 1997, New England Fiber may choose to
continue the [**] deduction or to terminate this agreement.
2.3. In the event the New England Fiber Fibers are made available for
New England Fiber testing by September 26, 1997 FiveCom shall invoice New
England Fiber for service provided herein commencing on September 26, 1997.
3. ARTICLE III - ACCEPTANCE
3.1. Upon installation of the New England Fiber Fibers, FiveCom shall
conduct acceptance tests in accordance with the Acceptance Test Plan ("ATP")
described in Exhibit C attached hereto and incorporated herein. FiveCom shall
provide New England Fiber with notice of the commencement of the acceptance
testing at least five (5) days prior to said commencement date. New England
Fiber shall have the right, at its sole expense, to have a person or persons
present to observe any tests conducted by FiveCom as a part of the ATP. Within
ten (10) days of the conclusion of the acceptance testing, FiveCom shall provide
New England Fiber with certified test results in accordance with the ATP. In the
event New England Fiber does not have observers present at the time FiveCom
conducts the acceptance tests, the results of the tests conducted thereunder as
certified by FiveCom to New England Fiber shall be deemed valid and binding upon
New England Fiber and the New England Fiber Fibers shall be deemed
unconditionally accepted by New England Fiber upon receipt of the certified test
results and New England Fiber shall provide a written Acceptance Notice within
ten (10) days of receipt of such certified test results, provided such certified
test results are within the parameters of the Specifications.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3.2. In the event New England Fiber has observers present to witness
the acceptance tests, New England Fiber and FiveCom shall then jointly evaluate
the measured results of the tests section by section. If the measured test
results are within the parameters of the Specifications, then and in such event,
New England Fiber shall unconditionally accept the test results and the New
England Fiber Fibers and provide a written Acceptance Notice.
3.3. In the event the measured test results are not within the
parameters of the Specifications, then within ten (10) days of its receipt of
the certified results from FiveCom, New England Fiber shall notify FiveCom in
writing that such results are unacceptable and shall specify in reasonable
detail the portions of the New England Fiber Fibers that are not within the
parameters of the Specifications. Thereupon, FiveCom shall use its best efforts
to take such action as shall be necessary to bring the operating standards of
the unacceptable portions of the New England Fiber Fibers within the parameters
of the Specifications. If FiveCom shall not have completed corrective action and
brought the operating standards of such portions of the New England Fiber Fibers
within the parameters of the Specifications within thirty (30) days of said
written notice from New England Fiber that such measured test results are
unacceptable, New England Fiber shall have the right, in its sole discretion, to
deduct the sum of [**] from the monthly payment described in Article VI for each
day necessary to bring the operating standards of the New England Fiber Fibers
within the parameters of the Specifications. Upon completion of corrective
action by FiveCom, New England Fiber shall provide FiveCom with an Acceptance
Notice within ten (10) days of completion of such corrective action. If FiveCom
shall not have completed corrective action within 60 days of said written notice
New England Fibers shall have the right to terminate this Agreement upon the
expiration of such 60 day period. If New England Fibers has not exercised its
right to terminate under the proceeding clause it shall be deemed to have
accepted the system and shall provide FiveCom with an Acceptance Notice within
10 days of the expiration of such 120 day period.
3.4. Upon acceptance by New England Fiber of all the optical fiber
strands comprising the New England Fiber Fibers, the New England Fiber Fibers
shall be deemed to be installed by FiveCom in accordance with the
Specifications, and FiveCom shall have no further liability therefore, except as
provided for under the provisions of Articles VII and VIII, herein.
3.5. Upon successful completion of the ATP and acceptance of the New
England Fiber Fibers by New England Fiber, New England Fiber shall provide
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FiveCom with an "Acceptance Notice" within any applicable period specified by
this Article III in the form attached hereto as Exhibit D. The date of
acceptance set forth in the Acceptance Notice shall be hereinafter referred to
as the "Acceptance Date". In the event New England Fiber fails to provide the
Acceptance Notice or fails to specify the Acceptance Date, the Acceptance Date
shall be deemed to be the date of acceptance as determined pursuant to this
Article III or, in the event a date of acceptance is not specified, the
Acceptance Date shall be deemed to be the last day of any Acceptance Notice
period required by this Article III. Upon execution, the Acceptance Notice shall
be attached to this Agreement as Exhibit D and shall be incorporated herein by
reference.
4. ARTICLE IV - DELIVERABLES
4.1 In accordance with the time frame set forth in Subarticle 4.2,
herein, FiveCom shall deliver to New England Fiber complete documentation
regarding the as-built condition of the New England Fiber Fibers. This
documentation (hereinafter referred to as the "Deliverables") shall consist of
the following:
4.1.1. As-Built Drawings prepared in accordance with the
specifications set forth in Exhibit E, attached hereto and incorporated herein.
4.1.2. Names of all manufacturers whose optical fiber cable,
associated splices and other equipment are used in installing and providing the
New England Fiber Fibers.
4.1.3. Technical specifications of the optical fiber cable,
associated splices and other equipment used in installing and providing the New
England Fiber Fibers.
4.1.4. List of names and 7 X 24 telephone numbers for FiveCom
personnel responsible for maintaining and repairing the New England Fiber
Fibers.
4.2. FiveCom shall provide two (2) copies of the Deliverables to New
England Fiber within thirty (30) days after the Acceptance Date.
5. ARTICLE V - TERM AND INDEFEASIBLE RIGHT OF USE
5.1. Unless sooner terminated in accordance with the terms of this
Agreement, FiveCom hereby grants to New England Fiber an Indefeasible Right of
Use ("IRU") in the New England Fiber Fibers for an initial term of twenty (20)
years, hereinafter referred to as the "Initial Term", commencing on the
Acceptance Date.
5.2. New England Fiber shall have the option to renew this Agreement
for one (1) five (5) year period ("Extension Term") commencing at the expiration
of the
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Initial Term, the lease rate for the Extension Term shall be negotiated by the
parties, but will in no event be more than the then prevailing market rate on
the system for dark fibers excluding any amortization for system construction
costs.
5.3. Notwithstanding any provision contained in this Agreement to the
contrary, at any time after the Acceptance Date, and after having satisfied the
provisions of ARTICLE VI, New England Fiber shall have the option, in its sole
discretion and for any reason to terminate this Agreement upon one hundred
eighty (180) days prior written notice to FiveCom.
6. ARTICLE VI - TERMS OF PAYMENT
6.1. Within 30 days of the Acceptance Date, and after delivery by
FiveCom of the deliverables in Article IV, New England Fiber shall deliver [**]
to FiveCom in immediately available funds as payment for the Initial Term.
6.2. If New England Fibers shall have elected to terminate under
Section 5.3 and shall not be otherwise in default under this Agreement upon the
expiration of the 180 days specified in that section FiveCom shall pay to it the
lesser of (i) [**] or (ii) [**] remaining in the Initial Term upon the
expiration of that 180 day period.
6.3. If FiveCom shall [**] other than affiliates and other then to
public utilities and their affiliates [**] FiveCom shall [**].
7. ARTICLE VII - MAINTENANCE AND REPAIR OF THE NEW ENGLAND
FIBER FIBERS
7.1. All routine maintenance and repair functions and emergency
maintenance and repair functions, including "One-Call" responses and cable
locate services for the New England Fiber Fibers shall be performed by or under
the direction of FiveCom, at FiveCom's sole cost and expense. New England Fiber
shall have the right to have an employee or representative available, at New
England Fiber's sole cost and expense, to assist FiveCom in any maintenance or
repair of the New England Fiber Fibers. FiveCom shall use best efforts to
provide New England Fiber with forty-eight (48) hours advance notice for routine
maintenance and routine repair functions by notifying New England Fiber's
national transmission surveillance center at [0-000-000-0000]. In the event of
an emergency, similar notice shall be given to New England Fiber as soon as the
emergency is discovered.
-8-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
7.2. Emergency Maintenance. FiveCom shall use best efforts to respond
to any failure, interruption or impairment in the operation of the New England
Fiber Fibers within [**] after receiving a report from New England Fiber of any
such failure, interruption or impairment and New England Fiber reserves the
right to have a representative present to assist in any maintenance or repair.
FiveCom recognizes that New England Fiber's company objective is to have all
fibers restored within six (6) hours of any failure, interruption or impairment
and FiveCom will use its best efforts to accomplish this objective. When trouble
is encountered on the New England Fiber Fibers, New England Fiber, to assist
FiveCom in its emergency maintenance activities, will diagnose the trouble
through OTDR testing, if possible, and ascertain and notify FiveCom of the
location address to the nearest cross street. FiveCom shall use its best efforts
to perform maintenance and repair to correct any failure, interruption or
impairment in the operation of the New England Fiber Fibers in accordance with
the procedures set forth in Exhibit F attached hereto and incorporated herein.
In the event FiveCom fails to perform any emergency maintenance in accordance
with FiveCom's emergency maintenance standards, after written notice by New
England Fiber, New England Fiber shall have the right but not the obligation, to
undertake such Routine Maintenance of the New England Fiber Fibers, at FiveCom's
sole cost and expense, using contractors pre-approved by FiveCom.
7.3. Routine Maintenance. FiveCom will schedule and perform specific
periodic maintenance and repair and services, as set forth in FiveCom's Routine
Maintenance Standards attached hereto as part of Exhibit G, from time to time on
the New England Fiber Fibers, at FiveCom's reasonable discretion, upon adequate
advance notice to New England Fiber, or at New England Fiber's reasonable
request. New England Fiber may request additional reasonable routine maintenance
by delivering to FiveCom, not more than twice per year, for FiveCom's approval,
a statement detailing the maintenance and services New England Fiber desires to
be performed on the New England Fiber Fibers. The cost for such additional
routine maintenance shall be negotiated by the parties. In the event FiveCom
fails to perform any Routine Maintenance in accordance with FiveCom's Routine
Maintenance Standards, after written notice by New England Fiber, New England
Fiber shall have the right, but not the obligation, to undertake such Routine
Maintenance of the New England Fiber Fibers, at FiveCom's sole cost and expense,
using contractors pre-approved by FiveCom.
7.4. New England Fiber shall furnish to FiveCom one day during six (6)
consecutive hours each calendar quarter which shall be available for FiveCom to
schedule and perform specific periodic maintenance and repair and services on
the New England Fiber Fibers.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
7.5. New England Fiber shall receive a credit ("Outage Credit") against
the fiber lease rate owed FiveCom hereunder in the event that the New England
Fiber Fibers do not operate within the parameters of the Specifications. The
Outage Credit shall be [**] for each hour or portion thereof during which any
fiber does not meet such specifications, as measured from the time New England
Fiber notifies FiveCom of the problem until the time FiveCom, or New England
Fiber in the event of self help has corrected the problem.
7.6. In the event FiveCom, or others acting in FiveCom's behalf after
written notice to New England Fiber, at any time during the term of this
Agreement discontinues maintenance and/or repair of the New England Fiber
Fibers, New England Fiber, or others acting in New England Fiber's behalf, shall
have the right, but not the obligation, to thereafter provide for the
maintenance and repair of the New England Fiber Fibers, at FiveCom's sole cost
and expense. Any such discontinuance shall be upon no less than six (6) months
prior written notice to New England Fiber. In the event of such discontinuance,
FiveCom shall obtain for New England Fiber, or others acting in New England
Fiber's behalf adequate access to the Rights-of-Way (as hereinafter defined) on
or within which the New England Fiber Fibers are located, for the purpose of
permitting New England Fiber, or others acting in New England Fiber's behalf, to
undertake such maintenance and repair of the New England Fiber Fibers.
7.7. In the event all or any part of the New England Fiber Fibers shall
require replacement during the Initial Term of this Agreement, such replacement
shall be made as soon as reasonably practical, at FiveCom's sole cost and
expense. If replacement of the New England Fiber Fibers is required in
accordance with the preceding sentence, FiveCom shall give New England Fiber
written notice of such replacement as soon as reasonably practical before the
replacement optical fiber cable is ordered from the manufacturer. New England
Fiber shall have the option, in its sole discretion, to be exercised by written
notice to FiveCom within twenty (20) days of New England Fiber's receipt of
notice from FiveCom to: (a) accept the proposed replacement optical fiber cable
per Specifications or; (b) increase the number of optical fiber strands to be
installed in such new cable for New England Fiber's use at New England Fiber's
incremental cost.
8. ARTICLE VIII - WARRANTIES
8.1. FiveCom warrants for the Initial Term of this Agreement that the
FiveCom System shall be in full compliance with and operate within the
parameters of the Specifications provided, however, that such warranties shall
in no way be
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
deemed to be a limitation on or in derogation of FiveCom's obligations under
Article VII, herein. Any maintenance or repairs to the FiveCom System required
as a result of a breach of the foregoing warranties shall be performed at
FiveCom's sole cost and expense.
8.2. FiveCom represents and warrants to New England Fiber that it has
full Corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by
FiveCom have been duly and validly authorized by all necessary Corporate action
on the part of FiveCom.
8.3. New England Fiber represents and warrants to FiveCom that it has
full corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by
New England Fiber have been duly and validly authorized by all necessary
corporate action on the part of New England Fiber.
9. ARTICLE IX - TAXES
9.1. [**], of any and all taxes (other than taxes based on income)
and [**].
9.2. If at any time during the Initial Term a federal, state or local
government authority seeks to impose any new taxes, franchise, license or permit
fees on FiveCom because of FiveCom's provision of the New England Fiber Fibers
pursuant to this Agreement, other than taxes based on income, New England Fiber
shall be responsible to pay FiveCom for such charges either with or without a
protest to the appropriate administrative jurisdiction or administrative forum.
10. ARTICLE X - LIABILITY
10.1. Neither New England Fiber nor FiveCom shall be liable to the
other for any indirect, special, punitive or consequential damages (including,
but not limited to) any claim from any customer for loss of services) arising
under this Agreement or from any breach or partial breach of the provisions of
this Agreement or arising out of any act or omission of either party hereto, its
employees, servants, contractors and/or agents. Both FiveCom and New England
Fiber shall use their best efforts to include in any agreement with any third
party relating to the use of the FiveCom System or the New England Fiber Fibers
a waiver by such third party of any claim
-11-
for indirect, special, punitive or consequential damages (including, but not
limited to, any claim from any client or customer for loss of services) arising
out of or as a result of any act or omission by either party hereto, its
employees, servants, contractors and/or agents.
10.2. Each party hereto agrees to indemnify, defend, protect and save
the other harmless from and against any claim, damage, loss, liability, cost and
expense (including reasonable attorney's fees) in connection with any personal
injury, including death, loss or damage to any property, or facilities of any
party (including FiveCom, New England Fiber or any other party operating or
using any part of the FiveCom System or the New England Fiber Fibers) arising
out of or resulting in any way from the acts or omissions to act, negligent or
otherwise, of such party, its employees, servants, contractors and/or agents in
connection with the exercise of its rights and obligations under the terms of
this Agreement or any breach by such party of any obligation contained herein.
10.3. Nothing contained herein shall operate as a limitation on the
right of either party hereto to bring an action for damages, including
consequential damages, against any third party based on any acts or omissions of
such third party as such acts or omissions may affect the construction,
operation or use of the New England Fiber System or the New England Fiber
Fibers, provided, however, that each party hereto shall assign such rights or
claims, execute such documents and do whatever else may be reasonably necessary
to enable the injured party to pursue any such action against such third party.
11. ARTICLE XI - FORCE MAJEURE
11.1. The obligations of the parties hereto are subject to force
majeure and neither party shall be in default under this Agreement if any
failure or delay in performance is caused by strike or other labor problems;
accidents not the result of negligence of the party seeking relief under this
Article; acts of God; fire; flood; adverse weather conditions; material or
facility shortages or unavailability not resulting from such party's failure to
timely place orders therefore; lack of transportation; the imposition of any
governmental codes, ordinances, laws, rules, regulations or restrictions;
condemnation or the exercise of rights of eminent domain; war or civil disorder;
or any other cause beyond the reasonable control of either party hereto;
provided, however, that the incidence of strikes or other labor unrest shall not
delay commencement of the running of time periods which must expire before New
England Fiber shall be entitled to itself take corrective action under the terms
of this Agreement; provided, further, however, that delays in FiveCom securing
the necessary Rights-of-Way for installation of the New England Fiber Fibers
shall not be deemed to be a force majeure, such delays being otherwise provided
for in Article XII, herein.
-12-
12. ARTICLE XII - PERMITS AND REQUIRED RIGHTS-OF-WAY
12.1. FiveCom represents that, to the best of its knowledge and belief
FiveCom owns, has obtained or can and will obtain all rights, licenses,
franchises, governmental regulatory approvals, authorizations, rights-of-way,
permits and other agreements necessary for the use of poles, conduit, cable,
wire or other physical plant facilities, as well as any other such rights,
licenses, authorizations, rights-of-way and other agreements necessary for the
installation and use of the New England Fiber Fibers (all of which are herein
collectively referred to as the "Rights-of-Way"). It is expressly understood
that FiveCom's obligations under this Agreement are conditioned upon and shall
in all respects be subject to the continuation or acquisition of such
rights-of-way. FiveCom shall use its best efforts to obtain or to cause such
rights-of-way to remain effective through the Initial Term of this Agreement.
New England Fiber will be notified in writing by FiveCom concerning any delays
in obtaining any approval described in Subarticle 12.1.
13. ARTICLE XIII - RELOCATION OF THE NEW ENGLAND FIBER FIBERS
13.1. It for any reason, FiveCom is required by any third party,
including, but not limited to, a governmental entity, to relocate any of the
facilities used or required in providing the FiveCom System and the New England
Fiber Fibers, FiveCom shall give New England Fiber at least sixty (60) days (or
such lesser period of notice that FiveCom may have received) prior written
notice of any such relocation and New England Fiber shall be entitled to
terminate this Agreement, in accordance with the provisions, excluding the
notification period, of Subarticle 5.3, herein, by giving at least thirty (30)
days prior written notice to FiveCom. In the event this Agreement is not
terminated, FiveCom shall relocate the New England Fiber Fibers and, to the
extent FiveCom is not reimbursed for the cost of such relocation by a third
party, governmental entity or otherwise, FiveCom shall be responsible for all
the costs associated with the relocation of the New England Fiber Fibers. If
FiveCom desires, for any other reason, to relocate any of the facilities used or
required in providing the New England Fiber Fibers, such relocation shall be
undertaken at FiveCom's sole cost and expense.
14. ARTICLE XIV - CONDEMNATION
14.1. In the event any portion of the FiveCom System containing the New
England Fiber Fibers, or the rights-of-way in or upon which they shall have been
installed, become the subject of a condemnation proceeding which is not
dismissed within one hundred eighty (180) days of the date of filing of such
proceeding and which could reasonably be expected to result in a taking, by any
governmental agency or other party cloaked with the power of eminent domain for
public purpose or use, then and in such event it is agreed that New England
Fiber shall be entitled to terminate this Agreement by giving at least thirty
(30) days prior written notice to
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FiveCom and, in that event, both parties shall be entitled, to the extent
permitted under applicable law, to participate in any condemnation proceedings
to seek to obtain compensation by either joint or separate awards for the
economic value of their respective interests. In the event that New England
Fiber is unable to obtain separate compensation for the lost value of its rights
under this Agreement, FiveCom agrees to refund to New England Fiber a pro rata
amount of the payment made pursuant to Section 6.1.
14.2. Upon its receipt of a formal notice of condemnation or taking,
FiveCom shall notify New England Fiber immediately of any condemnation
proceeding filed against the New England Fiber System, including the New England
Fiber Fibers, or the rights-of-way upon which the New England Fiber Fibers shall
have been installed. FiveCom shall also notify New England Fiber of any similar
threatened condemnation proceeding and agrees not to sell the New England Fiber
Fibers or rights-of-way to such acquiring agency, authority or other party in
lieu of condemnation without prior written notice to New England Fiber.
14.3. If the taking or condemnation requires relocation of the New
England Fiber Fibers, FiveCom shall use its best efforts to obtain an
alternative route over which the New England Fiber Fibers may be relocated, at
no cost to New England Fiber.
15. ARTICLE XV - USE OF THE NEW ENGLAND FIBER FIBERS
15.1. New England Fiber shall not use the New England Fiber Fibers in
any way which fails to comply with any applicable federal, state or local code,
ordinance, law, rule, regulation or restriction or any policy of insurance. New
England Fiber shall use the New England Fiber Fibers for New England Fiber's
network services and not for resale or transfer in bulk.
16. ARTICLE XVI - OWNERSHIP OF THE NEW ENGLAND FIBER FIBERS
16.1. New England Fiber shall have an undivided right of use of the New
England Fiber Fibers. FiveCom shall have an undivided, absolute and legal title
to ownership in the New England Fiber Fibers.
16.2. Except as otherwise provided in this Agreement, New England Fiber
shall not represent to any third party that any party other than FiveCom is the
legal owner of the New England Fiber Fibers. FiveCom acknowledges that New
England Fiber has contracted for the purchase of an IRU in the New England Fiber
Fibers and agrees that it will not take any action which is inconsistent with
New England Fiber's position.
17. ARTICLE XVII - DELIBERATELY OMITTED
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18. ARTICLE XVIII - DELIBERATELY OMITTED
19. ARTICLE XIX - CONFIDENTIALITY
If either party provides confidential information to the other in
writing and identified as such, the receiving party shall protect the
confidential information from disclosure to third parties with the same degree
of care accorded its own confidential and proprietary information. Neither party
shall be required to hold confidential any informational: 1) which becomes
publicly available other than through the recipient, 2) which is required to be
disclosed by a governmental or judicial order, 3) which is independently
developed by the disclosing party or 4) which becomes available to the
disclosing party without restriction from a third party. These obligations shall
survive expiration or termination of this Agreement for a period of two (2)
years.
20. ARTICLE XX - DEFAULT
20.1. New England Fiber shall not be in default under this Agreement,
or in breach of any provision hereof unless and until FiveCom shall have given
New England Fiber written notice of such breach and New England Fiber shall have
failed to cure the same within thirty (30) days after receipt of such notice;
provided, however, that where such breach cannot reasonably be cured within such
thirty (30) day period, if New England Fiber shall proceed promptly to cure the
same and prosecute such curing with due diligence, the time for curing such
breach shall be extended for such period of time as may be necessary to complete
such curing. Upon the failure by New England Fiber to timely cure any such
breach after notice thereof from FiveCom, FiveCom shall have the right, in its
sole discretion, to take such action as it may determine, to be necessary to
cure the breach or to terminate this Agreement upon written notice to New
England Fiber.
20.2. FiveCom shall not be in default under this Agreement or in breach
of any provision hereof unless and until New England Fiber shall have given
FiveCom written notice of such breach and FiveCom shall have failed to cure the
same within thirty (30) days after receipt of such notice; provided, however,
that where such breach cannot reasonably be cured within such thirty (30) day
period, if FiveCom shall proceed promptly to cure the same and prosecute such
curing with due diligence, the time for curing such breach shall be extended for
such period of time as may be necessary to complete such curing. Upon the
failure by FiveCom to timely cure any such breach after notice thereof from New
England Fiber, New England Fiber shall have the right in its sole discretion to
take such action as it may determine to be necessary to cure the breach or to
terminate this Agreement.
20.3. No remedy provided for herein is intended to be exclusive but
each remedy shall be cumulative and in addition to and may be exercised
concurrently
-15-
with any other remedy available to FiveCom or New England Fiber at law or in
equity.
21. ARTICLE XXI - NOTICES
21.1. Unless otherwise provided herein, all notices and communications
concerning this Agreement shall be in writing and addressed as follows:
If to FIVECOM:
FiveCom, Inc.
000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000-2014
Attention: Xxxxxxx X. Xxxxx
Facsimile Number: (000) 000-0000
If to New England Fiber: (One copy each to)
New England Fiber Telecommunications LLC
000 Xxxxx Xxxx Xx. South
Suite 300
Town & Country, MO 63017
Facsimile Number: 000 000-0000
Attention General Counsel
or at such other address as may be designated in writing to the other party.
21.2. Unless otherwise provided herein, notices shall be sent by
certified U.S. Mail, return receipt requested, or by commercial overnight
delivery service, or by facsimile, and shall be deemed delivered: if sent by
U.S. Mail, five (5) days after deposit; if sent by facsimile, upon verification
of receipt; or, if sent by commercial overnight delivery service, one (1)
business day after deposit.
22. ARTICLE XXII - ASSIGNMENT: SUCCESSION
22.1. Except as provided in this Subarticle 22.1, New England Fiber
shall not assign or otherwise transfer this Agreement, in whole or in part, to
any other party without the prior written consent of FiveCom, which consent
shall not be unreasonably withheld or delayed; provided, however, that without
such consent, New England Fiber shall have the right to assign, sublet or
otherwise transfer this Agreement, in whole or in part, to any parent,
subsidiary or affiliate of New England Fiber which shall control, be under the
control of or be under common control with New England Fiber, or any corporation
which purchases all or substantially all of the assets of New England Fiber. Any
assignee or transferee shall continue to perform
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the New England Fiber obligations to FiveCom under this Agreement. It will be
reasonable for FiveCom to take into consideration the financial stability and
ability to pay of any assignee.
22.2. Except as provided in this Subarticle 22.2, FiveCom shall not
assign or otherwise transfer this Agreement, in whole or in part, to any other
party without the prior written consent of New England Fiber, which consent
shall not be unreasonably withheld or delayed. It is expressly understood that
New England Fiber shall not consent to any such assignment if New England Fiber
has reasonably determined that the proposed assignee lacks appropriate financial
viability and technical capabilities suitable for providing maintenance and
repair of the New England Fiber Fibers and is incapable of performing FiveCom's
obligations under this Agreement to New England Fiber's satisfaction.
Notwithstanding the foregoing provisions of this Subarticle 22.2, FiveCom shall
have the right without New England Fiber's consent, to assign or otherwise
transfer this Agreement to any parent, subsidiary or affiliate of FiveCom which
shall control, be under the control of or be under common control with FiveCom,
or any corporation which purchases all or substantially all of the assets of
FiveCom, or to grant a security interest in this agreement securing any of
FiveCom's obligations. Any assignee or transferee shall continue to perform the
FiveCom obligations to New England Fiber under the terms of this Agreement.
22.3. Subject to the provisions of this Article XXII, this Agreement,
and each parties' respective rights and obligations hereunder, shall be binding
upon and shall inure to the benefit of the parties hereto and each of their
respective permitted successors and assigns.
23. ARTICLE XXIII - VENDORS
23.1. New England Fiber shall have the right to review FiveCom's list
of proposed vendors, suppliers and manufacturers of materials to be used in the
installation and construction of the New England Fiber Fibers.
24. ARTICLE XXIV - GOVERNING LAW
24.1. This Agreement shall be interpreted and construed in accordance
with the internal laws of the Commonwealth of Massachusetts without giving
effect to its principles of conflicts of laws.
25. ARTICLE XXV - DISPUTE RESOLUTION
25.1. It is the intent of New England Fiber and FiveCom that any
disputes which may arise between them, or between the employees of each of them
be resolved as quickly as possible. Quick resolution may, in certain
circumstances, involve immediate decisions made by the parties' representatives.
When such
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resolution is not possible, and depending upon the nature of the dispute, the
parties hereto agree to resolve such disputes in accordance with the provisions
of this Article.
25.2. FiveCom and New England Fiber shall each designate, by separate
letter, representatives as points of contacts and decision making for the
design, construction, installation and testing phases, of the New England Fiber
Fiber Network, said letters to be furnished by each parry to the other within 15
days from the date of this Agreement. Any disputed issues arising during the
design, construction, installation and testing phases of the New England Fiber
Fiber Network shall in all instances, be initially referred to the parties'
designated representatives. The parties' designated representatives shall render
a mutually agreeable resolution of the disputed issue, in writing, within 72
hours of such referral.
25.3. Any claims or disputes arising under the terms and provisions of
this Agreement, or any claims or disputes which the parties' representatives are
unable to resolve within the seventy-two (72) hour time period specified in
Section 21.2, herein, shall be presented by the claimant in writing to the other
party within five (5) business days after the circumstances which gave rise to
the claim or dispute took place or become known to the claimant, whichever is
later. The written notice shall contain a concise statement of the claim or
issue in dispute, together with relevant facts and data to support the claim.
25.4. Any dispute arising out of or related to this Agreement, which
cannot be resolved by negotiation, shall be settled in Boston, Massachusetts by
binding arbitration in accordance with the arbitration rules and procedures of
the American Arbitration Association. The costs of arbitration, including the
fees and expenses of the arbitrator, shall be shared equally by the parties
unless the arbitration award provides otherwise. Each party shall bear the cost
of preparing and presenting its case. The parties agree that this provision and
the Arbitrator's authority to grant relief shall be subject to the United States
Arbitration Act 9 U.S.C. 1-16 et seq. ("USAA") the provisions of this Agreement,
and the ABA-AAA Code of Ethics for Arbitrators in Commercial Disputes. The
parties agree that the arbitrator shall have no power or authority to make
awards or issue orders of any kind except as expressly permitted by this Section
21.4, and in no event shall the arbitrator have the authority to make any award
that provides for punitive or exemplary damages. The Arbitrator's decision shall
follow the plain meaning of the relevant documents, and shall be final and
binding. The award may be confirmed and enforced in any court of competent
jurisdiction. All post-award proceedings shall be governed by the USAA.
25.5. FiveCom shall continue to provide the New England Fiber fibers
pursuant to this Agreement during the proceedings and litigation described in
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Section 25 and New England Fiber shall continue to make payments in accordance
with this Agreement.
26. ARTICLE XXVI - LIENS
26.1. In the event the New England Fiber Fibers become subject to any
mechanics', artisans' or materialmen's lien, or other encumbrance chargeable to
or through FiveCom which interfere with the New England Fiber Fibers or New
England Fiber' use of and IRU in the New England Fiber Fibers, FiveCom shall
promptly cause such lien or encumbrance to be discharged and released of record
(by payment, posting of bond, court deposit or other means) without cost to New
England Fiber and shall indemnify New England Fiber against all costs and
expenses (including reasonable attorney's fees) incurred in discharging and
releasing such lien or encumbrance; provided, however, that if any such lien or
encumbrance is not so discharged and released within thirty (30) days after
written notice by New England Fiber to FiveCom, then New England Fiber may pay
or secure the release or discharge thereof at the expense of FiveCom.
26.2. In the event the FiveCom System becomes subject to any
mechanics', artisans' or materialmen's lien, or other encumbrances chargeable to
or through New England Fiber which interfere with the New England Fiber Fibers
or the FiveCom System, New England Fiber shall promptly cause such lien or
encumbrance to be discharged and released of record (by payment, posting of
bond, court deposit or other means) without cost to FiveCom and shall indemnify
FiveCom against all costs and expenses (including reasonable attorney's fees)
incurred in discharging and releasing such lien or encumbrance; provided,
however, that if any such lien or encumbrance is not so discharged and released
within thirty (30) days after written notice by FiveCom to New England Fiber,
then FiveCom may pay or secure the release or discharge thereof at the expense
of New England Fiber.
27. ARTICLE XXVII - MISCELLANEOUS
27.1. The headings of the Articles in this Agreement are strictly for
convenience and shall not in any way be construed as amplifying or limiting any
of the terms, provisions or conditions of this Agreement.
27.2. In construction of this Agreement, words used in the singular
shall include the plural and the plural the singular, and "or" is used in the
inclusive sense, in all cases where such meanings would be appropriate.
27.3. In the event any term of this Agreement shall be held invalid,
illegal or unenforceable in whole or in part, neither the validity of the
remaining part of such term nor the validity of the remaining terms of this
Agreement shall in any way be affected thereby.
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27.4. This Agreement may be amended only by a written instrument
executed by the party against whom enforcement of the modification is sought.
27.5. No failure to exercise and no delay in exercising, on the part of
either party hereto, any right, power or privilege hereunder shall operate as a
waiver hereof, except as expressly provided herein.
28. ARTICLE XXVIII - INSURANCE
28.1. Each party or its affiliates shall, at its own expense, secure
and maintain in force, throughout the term of this Agreement, General Liability
Insurance, with competent and qualified issuing insurance companies, including
the following coverages: Product Liability, Hazard of Premises/Operations
(including explosion, collapse and underground coverages); Independent
Contractors; Products and Completed Operations; Blanket Contractual Liability
(covering the liability assumed in this Agreement); Personal Injury (including
death); and Broad Form Property Damage in policy or policies of insurance such
that the total available limits to all injured will not be less than [**]
Combined Single Limit for each occurrence and [**] aggregated for each annual
period. Such insurance may be provided in policy or polices, primary and excess,
including the so called Umbrella or Catastrophe forms. All policies required by
this Subarticle 28.1 shall, to the extent possible, be endorsed to show the
other party, as additional insured, as their interests may appear; require the
insurance companies to notify the other party at least thirty (30) days prior to
the effective date of any cancellation or material modification of such
policies; and shall specify that the policy shall apply without consideration
for other policies separately carried and shall state that each insured is
provided coverage as though a separate policy had been issued to each, except
the insurers liability shall not be increased beyond the amount for which the
insurer would have been liable had only one insured been covered and only one
deductible shall apply regardless of the number of insured covered. The parties
shall also carry such insurance as will protect it from all claims under any
Worker's Compensation laws in effect that may be applicable to it. The
undertaking with respect to insurance shall not relieve either party of its
obligation in Article X.
29. ARTICLE XXIX - ENTIRE AGREEMENT
29.1. This Agreement, and any Exhibits attached hereto or to be
attached hereto, constitute the entire agreement between the parties hereto with
respect to the subject matter hereof and supersede any and all prior
negotiations, understandings and agreements with respect hereto, whether oral or
written.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written as an agreement under seal.
FIVECOM LLC: NEW ENGLAND FIBER
COMMUNICATIONS LLC
By: FiveCom Inc. By: /s/ X. Xxxxx Xxxxx
-----------------------
Name: X. Xxxxx Xxxxx
By: /s/ Xxxxxx Xxxxxxxxxx Title: President
-------------------------
Xxxxxx Xxxxxxxxxx
Title: President of
FiveCom, Inc. as Manager
of FiveCom LLC
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT A
Scope of Work
[**]
This scope of work describes the construction required by New England Fiber
Communications to lease fiber from FiveCom to connect [**].
[**]
There will be two connections to the FiveCom cable in [**]. The first location
[**]. New England Fiber proposes to place one 4 inch conduit from New England
Fiber's MH [**] to the power company's MH [**]. New England Fiber will then pull
a fiber cable from their hub to the power company's MH. FiveCom will pull the
cable [**] and splice it to their cable. This connection will be a temporary
connection until the rest of the New England Fiber's backbone is in place. The
power company will be notified two weeks in advance when New England Fiber's
contractor plans to connect the conduit to the power MH.
The permanent connection to FiveCom will be an aerial cable from the New England
Fiber backbone cable [**]. This will connect to the FiveCom cable. New England
Fiber will place the aerial cable [**] the power company will place the rest of
the cable on poles to their substation building and FiveCom will splice it to
their cable.
[**]
The [**] connection will be a permanent connection [**]. New England Fiber will
place new conduit from a New England Fiber MH [**]. New England Fiber will then
place a 3 inch steel pipe [**]. FiveCom will be notified two weeks in advance
when New England Fiber's contractor plans to connect the conduit [**]. FiveCom
will splice New England Fiber's cable to their cable.
The completion date for the above work is September 26, 1997.
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EXHIBIT B
Technical Specifications
1. The maximum bi-directional average splice loss shall not exceed 0.1 dB.
2. All splices shall be sealed in water proof splice enclosures.
3. Between the wavelengths of 1300nm and 1320nm, fiber attenuation shall
not exceed 0.4 dB/km for standard single-mode fiber and shall not
exceed 0.5dB/km for TrueWave, from temperatures between -40 and +65C.
4. Between the wavelengths of 1540nm and 1560nm, fiber attenuation shall
not exceed 0.3 dB/km for temperatures between -40 and +65 and shall
not exceed 0.25 dB/nm for TrueWave.
5. The wavelength of zero fiber dispersion shall be between 1300nm and
1320nm for unshifted single-mode fiber. The wavelength of zero fiber
dispersion shall be between 1535nm and 1565nm for TrueWave. The slope
of the dispersion curve at the wavelength of zero dispersion shall
not exceed .1 .10ps/nm/km.
6. The fiber dispersion at a wavelength of 1500nm shall not exceed 5
ps/(nm(bullet)km).
7. The fiber cut-off wavelength shall be less than 1330nm and greater
than 1130 nm.
8. Fiber attenuation shall be uniform along its entire cable length.
Attenuation discontinuities shall not exceed .1 dB at either 1300 nm
or 1550 nm as measured at any point along the fiber.
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EXHIBIT C
Acceptance Test Plan
FiveCom and New England Fiber will conduct the following tests as part of its
Acceptance Test Plan:
1. Non-destructive Attenuation Tests (End-to-End)
2. Optical Time Reflectometer Tests (OTDR)
Fiber acceptance testing will be performed to ensure that the New England Fiber
fibers will operate within the parameters of the Specifications set forth in
Exhibit B to this Agreement.
More specifically, fiber acceptance testing will include the
following:
3. Continuity Uniformity Tests:
All fibers shall be tested bi-directionally at 1310 nm or 1550 nm, as
applicable, with an OTDR, the subsequent traces shall be inspected
for end-to end continuity and for uniform attenuation. These traces
will be stored on diskette and will be compatible with laser
precision PC-OTDR software.
4. Optical Length:
The OTDR will be used to determine the end-to end optical length of
the cable.
5. Splice Loss:
Splice loss will be measured bi-directionally with an OTDR using the
Splice Loss average method. The average splice loss shall be the
measurement for splice loss set forth in Exhibit B to this Agreement.
6. End-to-End Loss:
Using a light source and a power meter, the bi-directional
connector-to-connector attenuation will be measured for each fiber at
1310 nm and 1550 nm, as applicable. The acceptance average
attenuation per kilometer on a per span basis shall be the
attenuation set forth in Exhibit B to this Agreement.
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EXHIBIT D
Acceptance Notice
Reference: That certain Fiber Optic Use Agreement between New England Fiber
Telecommunications Corporation and FiveCom, LLC dated _______________________.
This notice is provided in connection with Article III of the above referenced
agreement.
The New England Fiber System has been accepted as of ________________________.
New England Fiber Fiber Communications
By: __________________________________
(Signature)
Name: ________________________________
(Type or Print Name)
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EXHIBIT E
As-Built Drawing Specifications
FiveCom shall deliver As-built drawings in either Autocad or DXF format in
addition to five (5) "11 by 17" hard copies.
At a minimum. FiveCom's As-built drawings will include:
1. A route diagram that illustrates the location of the:
End Locations
Splice Locations
Repeater Locations
2. Manufacturer, type of cable, fiber count, and reel numbers.
3. A summary of distances between the locations listed above and offset
of cable in relation to fixed objects.
4. The type of cable construction between locations, (buried, aerial,
conduit) and any typicals or details needed for the specified type of
construction.
5. Any geographic information deemed necessary to further clarify the route.
6. Detailed route information that includes:
Street, road and highway names
Railroad and or highway crossings
Bridge Crossings
Manhole and pole identification
Pole-to-pole-pole distances in feet
Manhole-to-manhole distances in feet
Distances along or between any other attachment points on
the route
New conduit, manhole, and pole installations
Building riser and lateral conduit locations, if any
-26-
EXHIBIT F
EMERGENCY MAINTENANCE PROCEDURES
F1. Notification
New England Fiber shall notify FiveCom of interruption to service (signal loss,
service degradation, out of specification performance or other conditions) to
the fiber optic cable transmission system. FiveCom will dispatch technicians,
vehicles and equipment to initiate the repair of such conditions and the
restoration of service.
F2. FiveCom Contacts
In the event of a service interruption contact FiveCom by calling the following
numbers in the sequence listed below. If the first option is not successful
proceed to the second and so on.
a. Normal Hours
0-000-000-0000
b. Network Monitoring Service
0-000-000-0000
c. After Hours Digital Pager
000-000-0000
d. Xxxxxx X. Xxxxxx 484-5884 weekends,
Friday evening to Monday morning - Sunday
773-4050
e. Xxxxxxx X. Xxxxx
000-000-0000
f. Xxxxxx Xxxxxxxxxx
000-000-0000
This listing is subject to change.
F3. Dispatch
FiveCom shall respond to the notification immediately upon taking the call. For
required emergency restoration. Technicians and appropriate equipment will
report
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to the location controlling signals designated by Customer. FiveCom will log in
at the location and pick up needed restoration materials.
Restoration Activities: Troubleshooting will continue until the problem is
found.
The restoration sequence will be:
[bullet] Report of Damage
[bullet] Estimate time to repair
[bullet] Notification of Utilities if needed (i.e. down pole).
[bullet] Verbal report of tasks to repair given to the
representative of Customer and to New England Fiber.
F4. Repair
a. Channel or End Equipment Problems:
FiveCom technicians will isolate the signal problem by reviewing the
following:
1. visible alarms on bay or terminal equipment
2. computer generated equipment logs.
3. review of performance statistics for common and customer
equipment.
4. application of DS1 & DS3 test equipment, fiber optic signal
level meter and OTDR as required.
Testing and diagnostics will be coordinated with New England
Fiber technicians. FiveCom technicians will remain on the call
until all alarm or signal problems have been corrected.
b. Outside Plant Repairs
Commencing immediately FiveCom will restore service to the
link by fusion splice methods, as a first priority, or with
mechanical connectors as a second choice. FiveCom will use its
fusion splicer and OTDR power meter and all other equipment
required, excluding only the parts in the restoration kit.
The link will be brought into service, tested and protected
until the cable can be placed on a permanent pole attachment
or in conduit. Restoration test reports will be furnished to
Customer after testing. The testing report includes end to end
attenuation and photos along with a text describing the outage
suitable for insurance purposes.
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Upon the satisfactory completion and acceptance of the testing
by Customer, the service will be declared restored.
F5. End of Outage
FIVECOM, INC. ______________________________________ OUTAGE REPORT
CUSTOMER: ___________ DATE ___/___/___ TIME
REPORTED _________________
LOCATION: ____________________________
STREET: ____________________________________ POLE/MANHOLE: ____________
CAUSE OF OUTAGE: ___________________________
ARRIVAL AT DESIGNATED LOCATION: _________________________________ AM/PM
FIRST REPORT TO CUSTOMER: _______________________________________ AM/PM
ESTIMATED TIME TO REPAIR: _______________________________________
UTILITIES NOTIFIED:
ELECTRIC: __________________________ CONTACT: _________________
TELEPHONE: _________________________ CONTACT: _________________
CATV: ______________________________ CONTACT: _________________
OTHER: _____________________________ CONTACT: _________________
ANTICIPATED ACTIVITIES PRIOR TO RESTORATION:
TIME OF RESTORATION: AM/PM
REPAIRS MADE
CUSTOMER MATERIAL USED
DESCRIPTION: QUANTITY:
_______________________________________________ __________________________
_______________________________________________ __________________________
_______________________________________________ __________________________
_______________________________________________ __________________________
_______________________________________________ __________________________
TESTS COMPLETED
DATE: TIME: AM/PM
TECHNICIAN IN CHARGE:
SIGNED: ____________________________________________ FIVECOM, INC.
CUSTOMER:
LOCATION:
STREET:
CAUSE OF OUTAGE:
-29-
EXHIBIT G
ROUTINE MAINTENANCE STANDARDS
RIDEOUTS
Ride-outs of the fiber plant will be done on the following schedule:
Transmission Lines Annual end to end surveillance
Splice Locations Quarterly inspections
Distribution Lines Semi Annual inspection
Should New England Fiber require more frequent ride-outs, they will be done at
New England Fiber's cost unless technical performance data indicate cable
deterioration or failure. These ride-outs will be documented and will contain
notes concerning general condition of Right-of-Way and plant. Items such as
excavation activities, construction work, broken lashing wire, free trimming,
and so on will be noted and dealt with immediately. Follow up verification of
corrective actions taken will be documented.
FIBER TESTS
OTDR measurements will be performed at a minimum semi-annually on all inactive
fiber and compared against original installation readings to insure integrity.
Tests will be performed more frequently if tests and performance data warrant
additional measurements.
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